Citation NR: 9738239
Decision Date: 11/17/97 Archive Date: 12/02/97
DOCKET NO. 96-02 623 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Whether severance of service connection for porphyria cutanea
tarda was proper.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The veteran had active service from September 1967 to June
1970.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a decision of January 1995 by the
Department of Veterans Affairs (VA) Cleveland, Ohio, Regional
Office (RO). In the decision, the RO severed service
connection for porphyria cutanea tarda.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO should not have severed
service connection for porphyria cutanea tarda. He asserts
that he developed the disorder as a result of exposure to
agent orange during service. He states that he has had
symptoms of the disorder ever since getting out of service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that severance of service
connection for porphyria cutanea tarda was proper.
FINDINGS OF FACT
1. The RO granted service connection for porphyria cutanea
tarda in a rating decision of July 1, 1994.
2. There is no evidence that porphyria cutanea tarda was
manifest within one year after the last date that the veteran
was exposed herbicide agents in service.
3. The decision of July 1, 1994, was not in accordance with
the statutory and regulatory provisions extant at that time.
CONCLUSIONS OF LAW
1. The July 1994 decision which granted service connection
for porphyria cutanea tarda was clearly and unmistakably
erroneous. 38 U.S.C.A. § 1116 (West 1991); 38 C.F.R.
§§ 3.105, 3.307, 3.309 (1996).
2. Severance of service connection for porphyria cutanea
tarda was proper. 38 U.S.C.A. § 1116 (West 1991); 38 C.F.R.
§§ 3.105, 3.307, 3.309 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The procedural actions leading to this appeal may be
summarized as follows. The RO granted service connection for
porphyria cutanea tarda in a rating decision of July 1, 1994,
and assigned an effective date of February 3, 1994. In
August 1994, the veteran filed a notice of disagreement with
the effective date. Subsequently, in a rating decision of
October 1994, the RO proposed severing service connection for
porphyria cutanea tarda on the basis that the July 1, 1994,
decision contained clear and unmistakable error. The RO
notified the veteran of the proposal to sever service
connection in a letter of November 1994. Subsequently, in a
rating decision of January 1995, the RO severed service
connection for porphyria cutanea tarda. The veteran appeals
that decision.
Service connection will be severed only where the evidence
establishes it is clearly and unmistakably erroneous. The
burden of proof is on the government. See 38 C.F.R.
§ 3.105(d) (1996). "Clear and unmistakable error" is the
kind of error, of fact or law, that when called to the
attention of later reviewers compels the conclusion to which
reasonable minds could not differ, that the result would have
been manifestly different but for the error. See Fugo v.
Brown, 6 Vet.App. 40, 44 (1993).
Certain diseases may be presumed to have resulted from
exposure to herbicide agents such as Agent Orange during
service. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307 (a)(6)
and 3.309(e). In particular, service connection for
porphyria cutanea tarda may be granted if the disorder is
manifest to a degree of 10 percent within one year after the
last date on which the veteran was exposed to an herbicide
agent during service. See 38 U.S.C.A. § 1116; 38 C.F.R.
§ 3.307(a)(6)(ii).
After reviewing the record, the Board finds that the decision
of July, 1994, was not in accordance with the statutory and
regulatory provisions extant at that time. Significantly,
there was no evidence that porphyria cutanea tarda was
manifest within one year after the last date on which the
veteran was exposed to an herbicide agent in service. The
earliest medical record containing any reference to porphyria
cutanea tarda is a letter from Magdy Migally, M.D., dated in
August 1989. The Board notes that this letter is from over
19 years after the veteran’s separation from service.
A report of a VA disability evaluation examination conducted
in August 1990 shows that when recounting the history of his
porphyria cutanea tarda, the veteran reported that he had
“started getting blisters on both hands in April of 1989.”
Thus, the veteran’s own history of the disorder placed the
date of onset of the disease as being many years after the
end of the one year presumptive period. Similarly, a report
of a general medical examination conducted by the VA in
January 1994 shows that the veteran gave a history of being
diagnosed as having porphyria cutanea tarda by a physician in
July 1989.
In summary, when adjudicating the veteran’s claim for service
connection for service connection for porphyria cutanea tarda
in July 1994, the RO granted service connection even though
there was no evidence that the disease was manifest within
the one year presumptive period. If not for this error, the
result would have been manifestly different.
The Board notes that the veteran has recently submitted
additional evidence, however, it also does not provide a
basis for concluding that porphyria cutanea tarda was
manifest within the presumptive period. A hospital summary
from the Highland District Hospital dated in August 1993
shows treatment for porphyria cutanea tarda, but does not
contain any specific information as to the date of onset of
that disease. A letter from the veteran’s employer dated in
May 1994 shows that the veteran had been employed since May
1981, and had been absent from work very frequently in the
prior two years, but again contains no indication that the
porphyria cutanea tarda was present within the one year
presumptive period.
Finally, the Board has reviewed photographs which the veteran
submitted in May 1995. The Board notes, however, that these
photographs are undated, and no medical evidence has been
presented showing that porphyria cutanea tarda was manifest
at the time that the photographs were taken.
For the foregoing reasons, the Board finds that the July 1994
decision which granted service connection for cutanea
porphyria tarda was clearly and unmistakably erroneous.
Accordingly, the Board concludes that severance of service
connection for porphyria cutanea tarda was proper.
ORDER
Severance of service connection for porphyria cutanea tarda
was proper. The appeal is denied.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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